dissenting: I dissent from the conclusion of the majority of the Court because I think the record has been misunderstood, and the Court has reversed a finding of fact upon the ground that there is no evidence to support it, when there is no exception to the finding, which it has no power to do.
A fair interpretation of the record is that the parties waived a jury trial and agreed for the judge to find the facts; that evidence was introduced and admissions made to be considered together by the judge; that the judge found as a fact that the plaintiff had broken its contract, and held as matter of law that the defendants had waived the breach.
If so, I think no question is before us except to inquire into the correctness of the legal conclusion as to the waiver, as it has heretofore been regarded as settled that the finding of fact by the judge, a jury trial being'waived, is conclusive and binding upon this Court, in the absence of any exception that there is no evidence to support it (Millhiser v. Balsley, 106 N. C., 433; Travers v. Deaton, 107 N. C., 500; Roberts v. Insurance Co., 118 N. C., 435; Matthews, v. Fry, 143 N. C., 384), and, as was said in Barker v. R. R., 137 N. C., 222: “This. Court best *569serves its purpose and discharges its legitimate function in our governmental system when it confines itself to its constitutional orbit to review any decisions of the courts below, upon any matter of. law or legal inference.”
Possibly tlie strongest argument that can be made in favor of this view of the record is the fact that the learned counsel for the plaintiff do not devote a line in their carefully prepared brief to the discussion of the contention that the judge did not find the fact as to the breach of the contract against them, or that, if he did so, there was no evidence to support the finding. On the contrary, they say: “Upon these admissions and the evidence in the case, we think that the trial judge was correct in holding that there was a waiver by the defendants of the breach of the contract by the plaintiff to deliver the peanuts at the railroad station if the defendants so elected. Both parties requested the trial judge to find the facts just as a jury would have- done. The plaintiff, in order to relieve the court of a finding along that line, admitted that ‘if it is determined that it has been guilty of a breach of contract in refusing to deliver to the railroad station as requested, and that the breach has not been waived, that such breach of contract was the cause of the injury sustained by the defendants.’ In other words, the plaintiff thereby admitted that if the peanuts had been delivered at the railroad siding, they would not have gotten wet, and that they did get wet because they were not delivered at the railroad station. Thereupon the court ‘found that the plaintiff was guilty of breach of contract in that it refused to deliver the peanuts at the railroad station, as requested.’ The court likewise held, ‘as matter of law, the defendants waived said breach,’ and the court thereupon answered the issue, ‘Is defendant indebted to the plaintiff, and if so, in what amount?’ Answer: ‘Yes; $773.16, with interest from 1 June, 1911.’ Now, if there is any evidence to sustain the court in its finding that there was a waiver of the breach of contract, we submit that the judgment should be affirmed, and we have endeavored to point out above that there was abundant evidence along this line.”
It is no answer to this position to say that the plaintiff could not review the finding of the judge, because the judgment was in its favor.
*570In Matthews v. Fry, 143 N. C., 384, a jury trial was waived, and upon findings made by tbe judge, judgment was entered in favor of tbe defendant, wbicb was reversed on appeal.
“When tbe certificate of opinion was presented in tbe court below, tbe plaintiff moved for judgment in accordance therewith. Tbe defendant resisted this judgment and asked for a' trial de novo, and insisted that some of tbe findings of fact bad been made by tbe judge without any evidence to support them.”
An appeal was then taken by tbe defendant, and in disposing of tbe same tbe Court says: “Tbe judgment was properly entered for plaintiff in accordance with tbe mandate of this Court to reverse the judgment. Summerlin v. Cowles, 107 N. C., 462; Bernhardt v. Brown, 118 N. C., 711. The findings of fact by tbe judge, when authorized by law or consent of parties, are as conclusive as when found by a jury, if there is any evidence. Branton v. O’Briant, 93 N. C., 103; Roberts v. Insurance Co., 118 N. C., 435; Walnut v. Wade, 103 U. S., 688. If there was any ground to except to such findings because without evidence to support tbe finding, upon any point, or for any other cause, the defendant should have done so and have brought up bis side of tbe case also when the plaintiff appealed, or at least be should have entered an exception so as to preserve bis rights. It is liot unusual for both parties to appeal. Having acquiesced in the findings of fact without exception, it is too late to except now.”
Again, the Court says in tbe opinion in the case we are now considering: “The plaintiff bad notified defendants it was prepared to deliver 1 January, according to contract. The time for hauling tbe peas to tbe station or tbe boat was indefinitely postponed at defendant’s request, without any consideration.”
This is alleged in tbe complaint and denied in tbe answer, and no evidence was offered to support tbe allegation of tbe complaint.
In addition to tbe admissions recited in the judgment, it was also admitted “that the contract stipulated that tbe plaintiff should deliver tbe peanuts either to tbe railroad station at .Tillery, N. C., or to tbe boat at tbe river landing, as the defendant might desire at tbe time of delivery, and that de*571fendant was to pay tbe insurance which the State had to pay on the said peanuts- from 1 January, 1910, to 24 May, 1910, and that the amount of such insurance was to be calculated by Mr. T. W. Fenner.”
“It was also admitted by counsel that there was no controversy as to the amount of damage to the peanuts, the same being $926.25.”
I think, therefore, upon a just and fair consideration of the record, we must begin our investigation with the facts estab- , lished that the plaintiff has broken its contract, and that the defendants have been damaged thereby in the sum of $926.25, which they are entitled to recover by way of counterclaim, or to use as a set-off, unless they have waived the breach, and, upon the facts, I do ipt think there has been a waiver.
The legal position is not denied, that conduct relied on to constitute a waiver must be voluntary and intentional and inconsistent with the right. A. and E. Ency., 29, pp. 1091-5; Cyc., 40, pp. 253, 261; Robinett v. Hamby, 132 N. C., 356.
The law will not permit a party to claim as a waiver an act which it has compelled another to do, by its own default and wrong. It would be violative hf the fundamental principle of equity that no man shall profit by his own wrong.
“The act relied on to show an intent to waive must have been done voluntarily and ih the absence of compulsory or particularly urgent circumstances. If such circumstances exist, the presumption to waive does not arise.” A. and E. Ency., 29, 1096.
“Waiver is a voluntary act. What one does in a dilemma forced upon him by the default of another cannot be counted upon as a waiver. Voluntary choice is of the essence of the act.” Cyc., 40, 259; Cox v. Long, 69 N. C., 7; Austin v. Miller, 74 N. C., 274; Spiers v. Halstead, 74 N. C., 620.
“The justice of the rule that acceptance after breach, even though waiver of the right to treat such breach as discharge, is not a waiver of a right of action for damages, is apparent when it is considered that the party not in default is often constrained by his necessities to take what he can get under his *572contract, wliem be can get it. Sucb conduct should not operate as a waiver of the right of action for damages.” Page on Contracts, sec. 1510.
“A waiver is the voluntary and intentional relinquishment of a known right. It implies an election to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon. To constitute a waiver, therefore, the acts relied upon must have been intentionally done with a knowledge of the facts, and the party acting must have been in such situation of freedom to choose that his relinquishment can fairly be said to have been voluntary. "What one does in a dilemma, forced upon him by the default of the other, cannot be counted upon as a waiver.” Mechem on Sales, sec. 1071.
“The difficulty is in determining whether the accejffance is voluntary and unconditional. The party may have been put in such situation that there is nothing left but to accept the performance tendered and thus make the best of a bad matter; and where this is the case, his acceptance is not necessarily deemed a waiver.” Mechem on Sales, sec. 1079.
“Where the circumstances are such as to show that acceptance can, in no just sense, be regarded as voluntary, but rather as compulsory, the presumption of an intention to waive does not arise.” Bailey v. Tully, 12 Ill. App., 463.
“It often so happens that the purchaser is so situated that it is necessary for him to accept the article in its defective condition. It would indeed be singular that one who had placed him in this position should be allowed to escape liability on his contract.” Cordage Co. v. Rice, 5 N. D., 432.
The facts are that the plaintiff had sold to the defendants 10,000 bushels of peanuts, under a contract to deliver at the railroad or the landing, at the option of the defendants, apd that the defendants had paid for them. The defendants demanded delivery at the railroad, which the plaintiff refused, and the judge finds that there is a breach of contract by the plaintiff. The defendants then directed a delivery at the landing, and the court says this is a waiver.
*573I think not, because they were tinder compulsion, and -tbe act was not voluntary. Tbe plaintiff bad tbe peanuts and tbe money of tbe defendants in payment for theüi, and refused to deliver according to its contract.
Tbe defendants could not sue to recover tbe money or tbe peanuts, because it is provided in tbe act incorporating- tbe plaintiff, tbat “Any suit or action against sucb corporation shall be construed to be brought against tbe State, and no person shall have tbe right to bring or maintain any suit or action against it, nor shall any of tbe courts of tbe State have jurisdiction to try, bear, or determine any sucb suit or action, except as allowed by tbe Constitution in cases of claims against the State.” Revisal, sec. 5383,
They bad to accept delivery at tbe landing or lose everything, and were, in my opinion, as much under compulsion as any one who has ever been made “to stand and deliver.”
Mr. Justice Hoke concurs in this opinion.